Strafford County House of Corrections

ICE detainees are sometimes held at the Strafford County House of Corrections and other county jails in New Hampshire.

A federal judge slowed the pending transfer of eight ICE detainees from New Hampshire on Monday, strongly recommending they be tested for COVID-19 before being shipped out to Nevada.

District Court Judge Landya McCafferty avoided issuing a formal injunction to block the transfers, which were scheduled for Tuesday. But she made her expectations clear during an emergency hearing.

That hearing followed disclosures late last week about positive COVID-19 tests at the Strafford County jail, where ICE pays to house detainees in New Hampshire.

The judge said that if Strafford County can test 400 of its employees, ICE can test the eight detainees scheduled for transfer.

“If I were running ICE in this climate, in this crisis, it seems like one of the things I would want to know,” McCafferty said during a video-conference hearing.

She also granted much of what the American Civil Liberties Union wants from ICE: the medical history of the transferees, their eventual destination, and that destination’s experience with COVID-19 infection.

McCafferty, the chief federal judge in New Hampshire, has taken an active role in overseeing ICE detentions since the ACLU and four prominent New Hampshire law firms raised issues relating to COVID-19 and ICE detention.

McCafferty has freed seven immigration detainees deemed at high risk of infection. ICE released another seven after individual bail hearings before her.

On Friday, Strafford County announced that a medical records clerk at the county jail had tested positive for the COVID-19 virus.

The clerk had participated in testing that Strafford County offered its employees. She showed no signs of symptoms, was sent home and is now the subject of contact tracing, said Frances Cohen, an assistant U.S. Attorney for New Hampshire.

On Saturday, jail officials announced that an ICE detainee had tested positive for the disease. He showed up at the jail last Thursday with a slight fever and was put into isolation. He tested positive at Wentworth-Douglass Hospital, returned to the jail and is in one of its two negative pressure units.

Officials say he never came into contact with other inmates.

Cohen said the man had been transferred from ICE’s lockup in Bristol County, Mass.

Three weeks ago, Strafford County jail Superintendent Chris Brackett testified that detainees from ICE lockups with known cases, including Bristol County, would not enter his jail and instead would be brought directly to Pease Air National Guard Base to be flown out for deportation.

Cohen acknowledged that the ICE detainee was not tested before the transfer. She said he was in the portion of the jail reserved for criminals, not ICE detainees.

McCafferty stated she did not want to issue an injunction halting transfers, which the ACLU had requested. But she will consider ICE actions when she eventually rules on whether they have shown a deliberate indifference to the medical needs of their detainees.

“My goal here is not to micromanage a group of competent managers in the executive branch,” she said.

Most of the ICE detainees are at the jail for violating civil laws such as crossing the border illegally or overstaying a visa. Some are asylum seekers who have violated no laws.

Nathan Warecki, one of several lawyers on the case, said McCafferty continues to be concerned about how Strafford County and ICE handle the pandemic.

“It remains to be seen if ICE’s aspirations and actions are aligned,” said Warecki, a lawyer with the Manchester firm of Nixon Peabody.